Incapacity of a Parent 510-03-35-105

(New 7/1/2014 ML #3404)

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(N.D.A.C. Section 75-02-02.1-15)

Incapacity should be pursued for parents who would meet the criteria defined under this section as these parents would receive coverage under Traditional Medicaid fee-for-service.

A child, if otherwise eligible for Medicaid benefits, is "deprived of parental support or care" when the child's parent, whether married or unmarried, has a physical or mental defect which is of such a debilitating nature as to reduce substantially or eliminate the parent’s capacity either to earn a livelihood (breadwinner) or to discharge the parent’s responsibilities as a homemaker and provider of child care (homemaker) for a period of thirty days or more. A parent may establish incapacity by demonstrating that the parent has reached age sixty-five. When the only child is an unborn, the prospective parents must be married, and in the same ACA Medicaid Household to claim incapacity.

If the incapacitated parent is a breadwinner, the incapacity must be such that it reduces substantially or eliminates employment in the parent’s usual occupation or another occupation to which the parent may be able to adapt. The fact that a breadwinner may have to change occupation or work location does not establish incapacity. It does not matter whether a parent was employed or fulfilled the role of homemaker prior to the onset of the asserted incapacity. Incapacity is established either when a parent is unable to earn a livelihood or to act as a homemaker. The county agency must, therefore, be alert in identifying persons with potential for vocational training so that referrals can be made promptly to Vocational Rehabilitation Services for rehabilitation services, or to Job Service of North Dakota for possible training, or other appropriate programs.

A determination that a parent is disabled or blind, made by the Social Security Administration, constitutes adequate substantiation of incapacity for purposes of this section. If the medical approval date is prior to the eligibility date for SSI, medical and social information must be submitted to the State Review Team for an incapacity or disability determination for the period prior to the SSI approval date. Likewise, incapacity is established upon attaining age sixty-five years without submitting medical or social information to the State Review Team. Such person, however, must be informed of the potential eligibility for SSI and that choosing SSI will likely yield a larger amount of total income for the family.

The county agency is responsible for determining all eligibility factors except for incapacity which is determined by the State Review Team. Since the State Review Team does not see the person, it must depend on the examining physician's medical report to document the individual's physical or mental condition. In addition, the State Review Team must rely on the county agency's report which is based on both observation and the applicant's or recipient's judgment of how the incapacity affects the family in terms of employment or ability to discharge homemaking and child care responsibilities. Pertinent information about the person's past employment or homemaking adjustments, type of housing, method of heating the home, the availability or lack of modern conveniences in the home, ability to manage personal needs and affairs, attitudes and behavior, motivation, etc., is invaluable to the State Review Team. This information, which is reported on SFN 451 , "Eligibility Report on Disability/Incapacity", is forwarded along with any other medical reports to the State Review Team for evaluation and decision.

Incapacity is periodically reviewed by the State Review Team. When an incapacity review is due within three months of the previous decision, a new SFN 451 does not need to be completed by the county agency. The county is only required to inform the State Review Team whether the individual continues to be eligible for Medicaid.

A parent continues to be incapacitated, for purposes of this section, if the incapacity is not reasonably subject to remediation, or if the parent makes reasonable progress towards remediation of the incapacity. For purposes of this section, "reasonable progress towards remediation of the incapacity" means cooperation with medical practitioners who prescribe a course of treatment intended to remediate or limit the effect of the incapacity, including, but not limited to, physical therapy, counseling, use of prosthesis, drug therapy and weight loss, cooperation with vocational practitioners, cooperation with vocational and functional capacity evaluations, and reasonable progress in a course of training or education intended to qualify the parent to perform an occupation which, with that training or education, the parent would have the capacity to perform.

A parent who engages in activities inconsistent with the claimed incapacity, may be determined to not be incapacitated.

The Department may require a parent to demonstrate reasonable progress towards remediation of the incapacity, and may set reasonable deadlines for the demonstrations.